KUMARANDY KUDUMBAN (DIED) Vs. VENKATASUBRAMANIA AIYAR

JUDGEMENT

(1.) The plaintiffs, who are Pallars, sue on behalf of all the Pallars of four villages for a declaration of their exclusive right to the fishery in the Periakulam tank in Nenmeni village, Satur taluq, and for incidental reliefs. The defendants deny the plaintiffs right to the fishery and contend that the pangalis of the village alone are the owners of the fishery right. Both the Lower Courts have dismissed the plaintiffs suit as being barred by res judicata by reason of the decision in O.S. No. 501 of 1907 on the file of the District Munsif's Court of Satur. The plaintiffs have preferred this second appeal.

(2.) The first point for consideration is whether the plaintiffs suit is barred by reason of the decision in the previous suit. O.S. No. 501 of 1907 was by the Pallars against several persons. In that case the plaintiffs set up an exclusive right of the Palla inhabitants of four villages, Perumbacheri, Vannimadai, Kalungapatti and Pottalpacheri, to the fishery in the Periakulam tank. The averment in the plaint was that the 1 defendant, a Palla, on the strength of the patta for fishery standing in his name mortgaged his right to the 2nd defendant, Chinnasami Goundan, and on the strength of the said deed the 2nd defendant and defendants 3 to 6 and several others attempted, to catch fish in the tank; and the prayer was that the right of Palla inhabitants of the four villages be decreed and the mortgage executed by the 1 defendant be declared invalid. The present suit is for a declaration of the Pallars exclusive right to fishery in the Periakulam tank. The 13 defendant was the 2nd defendant in the previous suit. The other defendants who are Brahmans, Veltalars, Goundans, Thevans and others were not parties to the previous suit. The defence of defendants 1 to 4 is that the fishery right belongs to 80 pangalis of the village and nobody else including the plaintiffs has any right to the fishery. Defendants 10, 11 and 12 plead that the right to the fishery belongs to all the people of the villages. Though the plaintiffs right is the same in both the suits, yet the right put forward by the defendants in the present suit is not the same as the one that was put forward in the previous suit. The contention of the respondents is that the case that is now put forward in the present suit was put forward in the previous suit and reliance is placed upon the written statement of the 2nd defendant In that suit (Ex. I-a). Paragraph 4 of that statement is as follows: The fish that are caught within the said kanmoi belong in common to the people of these six villages... and it is usual for all the people of the said villages to catch whatever fish they can get in the ulvai of the tank and to take the fish that they respectively catch.

(3.) No doubt defendants 10, 11 and 12 set up the right of the people of the villages to catch fish in the tank; but defendants 1 to 4 set up the contention that the pangalis alone are entitled to the fishery. The question is whether the same question that was in issue in the previous suit is in issue in this suit? In order that the decision in the previous suit may operate as res judicata in the present suit, the matter now in issue should have been strictly and substantially in issue in the previous suit between the same parties or between parties under whom they or any of them claim litigating under the same title. In the former suit, the 2nd defendant set up the right of all the people of the villages to the fishery. In the present case defendants 1 to 4 contend that the 80 pangalis alone are entitled to the fishery. The contention now put forward cannot be said to be the same contention that was put forward in the previous suit and there was no decision on the right of the inhabitants to the fishery in the former suit. The decision in O.S. No. 501 of 1907 cannot operate as res judicata so as to har the present suit.